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Proposals in states like Texas and Alabama come as Republicans are trying to fend off challengers and make gains against Democrats in this year’s elections.
This story has been updated.
Texas Gov. Greg Abbott’s attempts to characterize medical care for transgender children as “child abuse” over the last week was met with swift rebukes from parents and pediatricians, fierce condemnation from the White House and a judge's order to block the policy.
But the Republican governor, who fended off primary challengers to the right of him in his re-election bid on Tuesday, is one of a growing list of state officials who have tried to cut back protections for LGBTQ people – particularly transgender children—in the last two years.
While Abbott pursues his untested theory, lawmakers in Alabama are considering legislation that would criminalize medical treatments for transgender children. Parents or medical professionals who provide children with puberty blockers, hormone treatments or surgery as part of their treatment could face up to 10 years in prison under a proposal that passed the Alabama Senate.
In Florida, Gov. Ron DeSantis, another Republican, is backing a measure that LGBTQ activists are calling a “Don’t Say Gay” bill, which would restrict what teachers could discuss with their students about sexual orientation and gender identity. The measure would also give parents the right to sue school districts they don’t think are complying with the law.
Virginia Republicans blocked residents in the state from being able to vote on a constitutional amendment sought by LGBTQ activists. The amendment would have formally rescinded language in the state charter that defined marriage as a union between a man and a woman. The U.S. Supreme Court rendered that definition obsolete when it authorized same-sex marriages across the country, but the language will remain in the Virginia constitution for the foreseeable future.
Perhaps the most common type of legislation, though, seeks to restrict the participation of transgender kids in school sports activities. Lawmakers in Arizona, Georgia, Indiana, Iowa, Kentucky, Missouri, South Dakota, Tennessee, Utah, Wyoming and other states have taken up measures dealing with sports. Most try to prevent transgender girls from participating in girls’ sports.
The surge of legislation has sounded alarms for LGBTQ advocates and allies nationally.
“The onslaught of state laws targeting transgender Americans and their families is simply wrong,” President Joe Biden said during his State of the Union speech Tuesday. “I’ve said last year, especially to our younger transgender Americans, I’ll always have your back as your president, so you can be yourself and reach your God-given potential.”
Thirty-five percent of transgender youth, according to a 2019 survey by the U.S. Centers for Disease Control and Prevention, had attempted suicide in the previous year.
In the speech, Biden called on Congress to pass the Equality Act, which would extend civil rights laws to protect people against discrimination based on their sexual orientation or gender identity. The measure has passed the U.S. House but not the narrowly divided Senate.
On Wednesday night, the president and his administration took aim directly at Texas for its new policies toward transgender youth.
"The governor of Texas has directed state officials to open child abuse investigations into families simply because they have provided access to affirming care for their children. This is government overreach at its worst," Biden said in a statement.
"Like so many anti-transgender attacks proliferating in states across the country, the governor’s actions callously threaten to harm children and their families just to score political points," the president said.
The U.S. Department of Health and Human Services also issued several pieces of guidance that said federal privacy and discrimination laws would make many aspects of Abbott's directive illegal. The agency encouraged state welfare agencies to support LGBTQ youth. HHS Secretary Xavier Becerra said he would "use every tool available to keep Texans safe."
“Any individual or family in Texas who is being targeted by a child welfare investigation because of this discriminatory gubernatorial order is encouraged to contact our Office for Civil Rights to report their experience,” Becerra added.
Separately, a state court blocked one investigation into the family of a Texas state employee that the state launched in response to Abbott's order.
Surge of State Legislation
Cathryn Oakley, senior counsel and state legislative director for the Human Rights Campaign, said legislation targeting LGBTQ people, especially transgender children, is gaining momentum in many state capitols.
“From 2015 [the year the Supreme Court legalized same-sex marriages] we’ve just had a huge surge in anti-LGBTQ legislation. Starting in 2020, the opposition pivoted really hard to attacking trans kids,” she said.
There were more bills trying to curb the rights of transgender people in 2020 than ever before, even more than in 2016 when North Carolina’s so-called “bathroom bill” led to widespread corporate boycotts of the state.
“So 2020 had been a record, and then in 2021, there were more than double the amount of anti-trans bills that had been filed the year before,” Oakley said.
Now, she said, Republican lawmakers are moving forward with proposals that were thought to be too outlandish just two years ago.
Efforts to limit transgender children’s access to medical care, for example, stalled in several states. In Arkansas, the first state to move forward with such a policy, lawmakers last year had to override the veto from their Republican governor, and courts immediately blocked the law from taking effect, Oakley noted. That didn’t stop Abbott from advancing a similar measure in Texas or state lawmakers from moving forward with the idea in Alabama this year, she said.
Several national conservative groups have pushed state lawmakers to pass laws targeting transgender children, often describing the measures as a way to protect family values. Those groups include the Heritage Foundation, Alliance Defending Freedom and the American Principles Project.
“Americans have watched with disbelief as biological males dominate women’s sporting events. Families have been shocked to discover their young children in public schools are being coached into believing they can change their sex and encouraged to make life-altering medical decisions before they can even understand the consequences,” Terry Schilling, president of the American Principles Project, said in a recent statement. “It should be no surprise that more state lawmakers are acting to address these obvious wrongs.”
But efforts like this by cultural conservatives can clash with the positions of business groups, such as the U.S. Chamber of Commerce, which tend to promote more inclusive policies.
Opposition from business leaders has historically been one of the biggest impediments to bills that restrict LGBTQ rights. North Carolina, after all, under pressure from business groups, eventually rescinded its 2016 “bathroom bill,” which would have forced transgender people to use public bathrooms of their biological sex rather than of their gender identity. The NBA moved its all-star game out of the state, musicians boycotted the state and corporations nixed expansion plans there. The law cost North Carolina $3.76 billion in lost business, according to The Associated Press.
Many corporations still oppose state laws that target transgender people—the Human Rights Campaign counts more than 150 large corporations nationwide – but their clout in red-leaning states could be diminished.
“It doesn’t mean businesses aren’t speaking out. It’s just a question of how seriously politicians care about business voices,” said Oakley, from the Human Rights Campaign. Because of gerrymandering, Republican lawmakers are becoming more conservative, she said.
“The folks in charge are less likely to be moderate,” she added. “Even in a state that’s still in Republican hands, the Republicans in charge may not be as interested in hearing a pro-business argument. They may not be interested in hearing any argument, frankly.”
The scrutiny of transgender youth also comes as conservative lawmakers have taken up measures to reduce the autonomy of school districts and teachers on everything from school mask policies to the teaching of racial injustices in American history. Rights for transgender children are being “lumped in” with those conversations, Oakley said.
The anti-transgender bills might not be as popular with the public as they are in some conservative circles, though. Two thirds of U.S. adults in a PBS NewsHour/NPR/Marist poll from last year said they opposed legislation that would limit treatment for transgender youth. What’s more, the level of opposition was essentially the same for independents, Democrats and Republicans.
Criminalizing Medical Treatment
The move in Texas to equate medical care for transgender children with child abuse comes chiefly from two Republicans who faced challenges from the right in their re-election bids this year. While Abbott easily won the Republican nomination on Tuesday, Attorney General Ken Paxton, who has faced legal troubles of his own, is now headed to a run-off to be the party’s nominee.
Paxton authored a legal opinion holding that a variety of treatments for kids with gender dysphoria would qualify as child abuse under Texas law, a position many legal and medical experts disagree with. The attorney general’s opinion also deals extensively with surgical procedures that are rarely performed on minors.
But the governor relied on Paxton’s opinion when sending a letter to the state Department of Family and Protective Services directing the agency “to conduct a prompt and thorough investigation of any reported instances of these abusive procedures.” Abbott noted that doctors, nurses, teachers and others were required under Texas law to report instances of child abuse, under the threat of criminal prosecution.
The Texas chapter of the National Association of Social Workers said, although the change was non-binding, it was still harmful. “These continued attempts to change the definition of child abuse are in direct opposition to social work values, principles, and our Code of Ethics and pose danger to transgender youth and their families,” the chapter wrote in a statement.
“Redefining child abuse to include gender affirming care would endanger how mental health professionals serve people in the LGBTQ community,” the group wrote. “Conversations within a therapeutic or any social work relationship should never be defined as child abuse.”
This week, the American Civil Liberties Union and Lambda Legal filed a lawsuit on behalf of an employee of the Texas child welfare agency whose daughter was receiving gender-affirming care. The lawsuit claims Abbott and Paxton “attempted to legislate by press release” and, in the process, “trampled on the constitutional rights of transgender children, their parents and professionals who provide vital care to transgender children.”
District Judge Amy Clark Meachum halted the investigation regarding that family on Wednesday but allowed other investigations to move forward until a March 11 hearing to decide if she should issue a statewide injunction.
Daniel C. Vock is a senior reporter at Route Fifty and is based in Washington, D.C.